Human rights are based on the belief that every individual is born with inherent and inalienable freedoms and liberties.
Concept of Human Rights
Individual freedom and liberty go together. They are inalienable, inherent, and inseparable to individuals simply because they are born as human beings. The crying call of the French Revolution (1789) was “Liberty, Equality, and Fraternity.” Each concept has been developed into distinct categories of human rights.
‘Liberty” represents civil and political rights, “Equality” corresponds to economic, social, and cultural rights, and “Fraternity” implies an international order that will guarantee the right to development, disaster relief assistance, and a good environment (clean soil, clear water, and clean air).
The 1948 Universal Declaration of Human Rights
The promotion of human rights has been affirmed by the UN in its preamble and in Articles 1, 55, and 56 of the UN Charter.
The UN Charter will promote “universal respect for and encouraging respect for human rights and for fundamental freedom for all” (Article 1.3 of the Charter), and pursuant to this objective, the UN Commission of Human Rights was entrusted with the creation of an International Bill of Rights in a statement form with the hope of later adding binding treaties. Mrs. Eleanor Roosevelt, wife of President Roosevelt of the US, was elected as chairperson of the Commission.
The UN General Assembly, in terms of its power under Article 13 of the Charter, adopted the Declaration by its Resolution 217 A (III) on 10th December 1948, with 48 states voting in favor of the Declaration, none against, and 8 abstentions.
A Discussion Guide on the Universal Declaration of Human Rights, published by the UN in 1951, states that “the fact that 48 countries voted for it in the General Assembly seems to show a large measure of world backing for the things it stands for.
Only eight abstained, and not one voted against it. This means that if a country or an individual now ignores these principles, he is going contrary to the declared conviction of most members of the United Nations.”
The Declaration is called “the Universal Declaration of Human Rights”. The Declaration in essence recognizes the inherent dignity and equality of all members of the human family that is based on the foundation of freedom, justice, and peace in the world.
Mrs. Roosevelt, in her statement on the eve of the adoption of Declaration, described these aims in somewhat greater details as follows:
This Declaration may well become the international Magna Carta of all men everywhere.
We hope its proclamation by the General Assembly will be an event comparable to the proclamation of the Declaration of the Rights of Man by the French people in 1789, the adoption of the Bill of Rights by the people of the United States, and the adoption of comparable declarations at different times in other countries.
When the Declaration was adopted, the General Assembly of the UN proclaimed that this Declaration “is an historic act, destined to consolidate world peace through the contribution of the United Nations toward the liberation of individuals from the unjustified oppression and constraint to which they are too often subjected.”
The General Assembly recommended to governments that the text of the Declaration be distributed in schools and other educational institutions.
The Declaration exists in 80 languages. In 1950, the General Assembly invited all state-members and interested organizations to observe 10th December, the anniversary of the adoption of the Declaration as the “Human Rights Day”.
The Declaration is one of the most important UN instruments in the framework of international law of human rights.
Although it has been argued that the Declaration is merely a proclamation of the General Assembly and accordingly has no legally binding effect, the Declaration has become a part of customary international law because of its wide acceptance by the international community.
Contents of the Declaration
The Declaration contains a preamble and 30 Articles, setting forth the human rights and fundamental freedoms to which all men and women all around the world are entitled.
The preamble of the Declaration, which provides the reasons and the intent of the instrument, confines itself to describing the Declaration as a “common standard of achievement for all peoples and all nations,” and as a “common understanding of rights and freedoms” for which the members of the UN have pledged themselves to promote “universal respect and observance”.
Article 1 lays down the philosophy upon which the Declaration is based and reads:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
The language of this Article defines the basic assumptions of the Declaration: (a) the right to liberty and equality is every human being’s birthright and cannot be alienated, (b) human being is a rational creature, is different from other creatures on earth and therefore entitled to certain rights and freedom which other creatures do not enjoy. Article 3 is the cornerstone of the Declaration and proclaims that “Everyone has the right to life, liberty, and security of person.”
As noted earlier, the Declaration was adopted in a non-legally binding form. However, subsequent commitment by states to the Declaration has transformed it into a “Charter of Mankind”.
The majority of legal authors claim that the Declaration has become a part of customary international law. Many of the rights enumerated in the Declaration have been incorporated into the national Constitutions of many countries, including that of Bangladesh.
The weakness of the Declaration is that it does not contain any mechanism for ensuring various categories of human rights, and this has occurred because the Declaration is not a treaty, and as such it did not have binding provisions within it.
Two Approaches on Human Rights
There were two approaches to the question of human rights. The Western countries hold to the belief that personal freedom and security constitute the core of human rights. It is argued that the West’s widespread belief that the act of proclaiming human rights will somehow affect actual improvements in people’s lives is misconceived.
Developing countries argue that the elimination of poverty is the most fundamental right for human beings.
Personal freedom with an empty stomach is no “freedom” at all. Furthermore, poverty denies people of poor countries certain fundamental rights such as the right to safe drinking water, the right to work, and the right to primary health care.
Former Irish President and UN Human Rights Commissioner Mary Robinson reportedly said in 2002:
“I am often asked what is the most serious form of human rights violation in the world today, and my reply is consistent: extreme poverty.”
Many social scientists believe that the elimination of poverty is “the mother” of human rights. The horror of poverty was highlighted in a message given by Kofi Annan, UN Secretary-General, on October 17, 1999, on the day of observance of International Day for the Eradication of Poverty. He said that how many times have we said that poverty was incompatible with human dignity.
But billions of people are still trying to live on less than US$ 2 dollars a day, with no drinking water, health care, or access to education… and thus still deprived of some of their most basic rights.
Poverty is not an immediate phenomenon. It is a result of historical and contemporary policies. There is growing awareness of the yawning gap between rich and poor nations.
As of 1999, according to the UN Human Development Report, the 200 richest people doubled their income in the past four years to US$1000.00 billion, and the three richest people have more assets than the total assets of the poorest 600 million people.
Rich countries are now publicly acknowledging that 20 years of aid to the world’s poorest nations have failed to make an impact on poverty. Larry Summers, the former US Treasury Secretary, said in a speech in April 2000 that “at a time when 1.3 billion people a day still live less than a dollar a day, the world is rightly and increasingly demanding that assistance be more effective in raising human development.”
Rapid developments in the global market, the role of international organizations, and the rise in the power of transnational corporations (e.g., Microsoft, General Motors, Exxon, Marubeni, Sumitomo) have widened the gap between rich and poor nations.
Transnational corporations dominate economically the world. For instance, 51 of the world’s largest economies are now corporations, and only 25 countries of the world are now listed as having a larger Gross Domestic Product than the total annual value of the sales of the world’s biggest corporation.
Many development experts have suggested certain strategies to eliminate global poverty, and some of them are:
- Democratic governments with adequate participation of people at every level
- Privatization to be kept side by side with strong public sector services
- Realization that poverty is a violation of human rights
- Better management of basic services including housing, primary health, and gender equality
The World Bank, which lent almost US$ 30 billion in 1999, has been shifting its focus towards poverty reduction for several years.
Over the past 20 years, the Bank has moved away from huge infrastructure projects and instead targeted social infrastructure such as education and health.
The International Monetary Fund, in the face of extreme criticism in response to the Asian Financial crisis in 1997, began to try to recast itself as an institution concerned with reducing poverty instead of just rescuing countries from financial or economic crises.
Poverty can only be eliminated if rich nations, together with the biggest international agencies and transnational corporations, join together in promoting poverty alleviation policies. More coordination between international and national action on poverty alleviation is imperative.
Difference Between Political and Economic Rights in the 1966 Human Rights Covenants
The divergence of opinions among states on what constitutes “human rights” and what rights would be incorporated in binding Covenants was the main reason that it took 18 years to prepare two binding separate Covenants in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.
It appears that while civil and political rights are immediately enforceable and justiciable, economic, social, and cultural rights depend on domestic programs and legislation. This distinction appears to be affirmed by the language used in the two Covenants.
The Covenant on Civil and Political Rights provides for immediate protection by requiring States to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized” (Article 2). On the other hand, the Covenant on Economic, Social, and Cultural Rights requires that States “undertake to take steps… to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized” (Article 2).
The differential implementation of rights in the two Covenants indicates that civil and political rights are seen as a top priority of a State irrespective of its resources whereas economic, social, and cultural rights may be progressively implemented subject to the resources of a State.
However, some authors on human rights have questioned the utility in attempting to differentiate the rights of the two Covenants.
What is important is to note that whether rights are civil, political, economic, social, or cultural in orientation, it makes no difference to their qualitative status as rights. This was affirmed in the 1993 Vienna Declaration and Programme of Action at the World Conference on Human Rights.
The Declaration made it clear that all human rights were universal, indivisible, and interrelated, implying that “bread and liberty” were two sides of the same coin.
The 1986 UN Declaration on the Right to Development provides that the right to development is an inalienable human right (Article 1.1) The Declaration focused on the centrality of the human person as a subject of the development process.
The Declaration has been a milestone in recognition of the right to development.
Meaning of Fundamental Rights or Freedoms
The term “fundamental rights” implies that there are some rights which are more fundamental than others. The UN Charter, in its preamble, mentions “fundamental human rights.”
Many jurists maintain that these rights originate in natural laws and are “elementary” rights. Included in this list are the right to life, freedom from torture, inhuman and degrading treatment, freedom from slavery, and freedom of religion, thought, and speech. In other words, these rights go with the inherent dignity and worth of a human being.
The respect for fundamental rights is the foundation of a peaceful world. These rights cannot be derogated or diminished in any circumstances, while other rights may be restricted under certain situations of threat to national security at the time of war or national emergencies. Therefore, it can be argued that these non-derogable rights must be considered as “fundamental” and are binding on all states, even in the absence of any treaty obligations or of any express acceptance.
An aspect that merits attention is that fundamental rights are not static but dynamic. This means ordinary rights can be elevated in the course of time to fundamental ones.
For example, many jurists argue that prohibition of race and sex discrimination has attained such a status in modern times.
UN Commission of Human Rights and Its Functions
Under Article 62 of the UN Charter, the Economic and Social Council (ECOSOC) ordinarily makes recommendations for the purpose of observing human rights.
A Commission of Human Rights was created in 1946 for this purpose. Presently, it consists of 53 member-countries elected by the member states. The Commission holds its session annually in Geneva for about six weeks to examine human rights matters raised by member states of the UN.
The Commission in turn has set up many subsidiary bodies to assist in its work. One of them is the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The Sub-Commission is composed of experts for a four-year term.
The experts serve the body in their personal capacities and not as representatives of states. The Sub-Commission meets each year for about one month and submits its report to the Commission of Human Rights.
Functions of the UN Human Rights Commissioner
The UN Human Rights Commissioner is appointed for a four-year term by the UN Secretary-General. The High Commissioner’s office is located in Geneva and is entrusted to investigate human rights abuses around the globe.
In cases of gross violation of human rights, such as in Bosnia and Kosovo, the Commissioner undertakes a visit to the affected territory and submits an annual report to the Commission.
The immediate past High Commissioner of Human Rights was the former President of Ireland, Mary Robinson (a Barrister and law professor). It was reported that she visited 60 countries including Sierra Leone, Kosovo, and East Timor. But it was her visit to the breakaway Russian province of Chechnya in 2000 that captured most international attention.
UN Human Rights Committee
The Human Rights Committee constituted under Article 28 of the Covenant on Civil and Political Rights of 1966, is composed of experts who serve in their personal capacities. The Committee is charged with supervising the implementation of obligations of the states-parties of the Covenants on Civil and Political Rights.
Under Article 40 of the Covenant, state parties undertake to submit reports to the Secretary-General of the UN on the measures they have adopted which give effect to the rights recognized by the Covenant. The Secretary-General, in turn, transmits them to the Committee for consideration.
The Committee also examines inter-state complaints about breaches of the provisions of the Covenant.
In April 1997, in Australia, the UN Human Rights Committee found Australia to have breached its obligations under the International Covenant on Civil and Political Rights for having detained a Cambodian asylum seeker for 4 years after his arrival in Australia in 1989.
The applicant filed a complaint with the Committee and argued inter alia that the detention without recourse to any remedies in the Australian legal system was a breach of Article 9 (1) of the Covenant which provides that:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
The Human Rights Committee found that there had been a violation of this right. One of the most important aspects of the decision was the finding by the Committee that Australia’s detention of the refugee applicant had not been lawful in spite of specific Australian legislation that permitted such detention.
Another conclusion can be made is that the validity of a domestic legislation must be tested not only by reference to the domestic legal order but also by reference to rules of international law.
It is noted that international lawfulness of a domestic action becomes an issue where it is the subject of a direct international legal obligation. However, Australia rejected the UN concern.
Individual vs. Human Rights
State sovereignty is not absolute but is limited by international law. By the end of the 20th century, respect for human rights is no longer solely a national concern but has become a matter of international interest.
No longer can a state argue that the violation of human rights within its territory is simply a matter of domestic jurisdiction. Furthermore, individuals are no longer “objects” but are being treated as “subjects” of international law.
The judgment of the International Military Tribunal at Nuremberg (1946) established the principle that individuals and not states were responsible for crimes against humanity, and superior orders were no defense to the commission of those crimes. The Nuremberg Tribunal observed:
“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
As individuals are held responsible for international crimes, such as crimes against humanity, war crimes, and genocide, they also have corresponding rights under international law. This means that individuals may have access to the machinery under international law if the domestic system to protect their human rights fails or is found wanting.
Right of Individuals to Report Violations of Human Rights to the UN
The ECOSOC adopted two important resolutions: one in 1967 and the other resolution (number 1503) in 1970. The 1967 resolution empowers the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities to establish a five-member expert group whose task is to examine all communications relevant to gross violations of human rights and fundamental freedoms.
Under this procedure, any individual who has been denied his/her fundamental human rights may communicate the allegations under the confidential procedure to the UN Human Rights Office in Geneva. On the other hand, the procedure under resolution 1503 does not deal with individual cases as such but with situations that affect a large number of people over a protracted period of time.
The UN Human Rights office in Geneva sends allegations of human rights abuses to individual states for their response.
The allegations and responses are considered by the Committee of Experts at a private session and if the Committee finds the allegations prima facie valid, they refer the matter to the Sub-Commission for confidential hearing. Often, a Minister or a senior official appears and makes submissions before the Sub-Commission.
After a hearing in confidence, the Sub-Commission decides whether it should refer the allegations to its parent body – the Human Rights Commission for public hearing. It is noted that all hearings in the Sub-Commission with regard to allegations of violation of human rights are held in closed sessions and are private.
It appears that the UN Office for Human Rights receives thousands of letters alleging violations of human rights from individuals or groups of people. The allegations are examined and acted upon as described in the above paragraphs.
Every year representatives of about 10 countries on average appear before the Sub-Commission to explain and defend the alleged violation of human rights on their own nationals.
Human Rights and Women
The human rights movement has focused on the violation of human rights against women. The primary purpose of the movement is the quest for justice for women.
In Afghanistan at one time, women made up half of the doctors and university students and most of the teachers, but under the Taliban government (1996-2001), women were disallowed to work or study or even restricted from going outside the home without accompanying a male relative. These restrictions on women in Afghanistan were repugnant to the accepted values of contemporary society.
The Commission on the Status of Women was set up by ECOSOC. Its functions are twofold: to prepare recommendations and reports to ECOSOC on promoting women’s rights and second to make recommendations to ECOSOC on urgent problems requiring immediate attention in the field of women’s rights.
This body has been able to set standards in the area of women’s rights in political, economic, social, and educational fields. The Commission was responsible for drafting the 1967 Declaration on the Status of Women and the 1979 Convention on the Elimination of All Forms of Discrimination against All Women.
The Commission on the Status of Women reports to the General Assembly with respect to the implementation of the 1979 Convention.
The Commission organized the Women’s Rights Conference in Beijing in 1995 and in New York in 2000. The Commission identifies the violators among states of the 1979 Convention to the international community through such Conferences.
The major breakthrough on women’s rights came in 1979 when the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted.
By March 2000, 165 states ratified it. CEDAW defines the concept of discrimination against women and prepares measures for action under domestic laws of states.
Article 1 of the Convention describes discrimination as follows:
“any distinction, exclusion, or restriction made upon the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.”
State parties to the CEDAW are committed to enacting laws on the principle of equality of men and women, including the protection of women against the social forms of unequal treatment that are prevalent in traditional societies.
Under the Convention (Article 17), a Committee has been constituted consisting of experts of high moral standing for a four-year term elected by the State parties
The Committee meets annually for about two weeks and monitors the legislative, judicial, administrative, or other measures of state parties to give effect to the provisions of the Convention, thereby attempting to remove discrimination of women in all fields.
The 1993 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights urged the full and equal enjoyment by women of all human rights and stressed that human rights should be a priority concern for governments and the UN.
Of particular significance in the Vienna Declaration is the pronouncement to the effect that violence against women in public and private life, all forms of harassment, exploitation, and trafficking in women, gender bias in the administration of justice and any conflicts that might arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices, and religious extremism, be treated as violations of women’s human rights and hence ought to be eliminated.
There are other international human rights instruments specifically meant for women, among these are the 1962 Convention on Consent to Marriage and the 1974 Declaration on the Protection of Women and Children in Emergency and Armed Conflict.
The General Assembly adopted in 1965 a resolution recommending consent to Marriage, Minimum Age for Marriage and Registration of Marriages.
There are many ILO Conventions that are deemed to be relevant for women workers, but the record of ratification of these conventions in the Asia Pacific region is not impressive.
Many countries are not implementing an important ILO Convention (100 of 1951) on Equal Remuneration. Another ILO Convention of great significance to the vast majority of women workers, the Convention (156 of 1981) on Workers with Family Responsibilities, has had only a few ratifications.
Most women work in the informal sector, and they are mostly outside the country’s protection of national labor laws. The basic regulations of worker rights as embodied in labor laws must be recognized and enforced in the informal sector as well.
Another issue is that although customary and treaty (conventional) international laws condemn discrimination against women, legal remedies available to ordinary women are not known to them and are often inaccessible.
UN Conventions Against Discrimination
The elimination of all forms of discrimination has been one of the major objectives of the UN since its inception. The Charter of the UN has a predominant theme of the equality of treatment of all human beings. The UN has devoted considerable energy to drafting instruments designed to combat the most pervasive kinds of discrimination – racial and gender (women).
The 1963 UN Declaration on the Elimination of All Forms of Racial Discrimination was adopted. It was followed by another Declaration on the Elimination of Discrimination against Women in 1967. Later, the rights incorporated in both the Declarations were translated into UN Conventions.
In 1965, the International Convention on the Elimination of All Forms of Racial Discrimination and in 1979, the Convention on the Elimination of All Forms of Discrimination were adopted.
In 1958, the Discrimination (Employment and Occupation) Convention was adopted by the International Labour Organization. The Convention prohibits any distinction, exclusion, or preference in employment or occupation based on race, color, gender, religion, political opinion, national extraction, or social origin.
It is noted that law alone cannot, however, meet the whole range of socially undesirable practices.
If discrimination towards women is to be avoided, not only individual conscience that is trained at home, at school, and in all social interactions, but also strong social pressures must play their part. What is needed is social awareness that women must be treated at par with men in all spheres of social and economic life.
Human Rights and Children
Children, by reason of their physical and mental immaturity, are the most vulnerable and weak and are subject to abuse in any society.
Child labor is one of the most serious violations of children’s rights. Although poverty has been a major factor in child labor, it also occurs because of economic instability, discrimination, migration, scarcity of jobs for adults, and lack of schooling. Furthermore, natural disasters, sharp economic downturns, and armed conflicts or civil wars draw the young into child labor or into armed forces.
According to a report of the Geneva-based International Labour Organization, released in May 2002, about 246 million children are involved in unacceptable forms of child labor.
Of these, 179 million – most under 15 – are in hazardous employment such as mining, fishing, forestry, and construction. About 8.4 million children are trapped in slavery, trafficking, forced recruitment for armed conflict, prostitution, and pornography.
Sixty per cent of working children live in the Asia-Pacific region, 23 per cent in Sub-Saharan Africa, and only 1 per cent in developed countries. Often they work as bonded labor because their parents have usually defaulted on a loan.
As a result, the children work at the lender’s shops or enterprise until the loan is paid. Another instance of abuse is the marriage of children of minor age. Such abuses deprive a child of normal development and education.
On the international level, the Convention on the Rights of the Child, 1989, is a comprehensive document protecting the rights of a child. The salient feature of the Convention may be found in Article 3 of the Convention:
“In all actions concerning children, whether undertaken by public or private social welfare organizations, courts, administrative authorities, or legislative bodies, the best interests of the child shall be a primary concern.”
In 1996, the Council of Europe adopted the European Convention on the Exercise of Children’s Rights. The Convention provides rights to children, such as: (a) to receive all information, (b) to be consulted, (c) to be informed of possible consequences of any decision (Article 3 of the Convention).
Although there is a progressive development of Children’s rights, there is no uniformity regarding the definition of a child in domestic laws of states. Different countries may define a “child” according to their domestic laws despite the fact that the 1989 Convention on the Rights of the Child defines “children” as all persons under the age of 18.
Some countries consider a child below 18 years of age or some below 14 years.
Even within a country there exist contradictory laws as to the age of a child regarding his/her legal competence. Another issue is the wrongful removal of children by one of the separated or divorced parents contrary to the direction of the court regarding the custody of a child.
The case of Elian Gonzalez, (a six-year-old Cuban boy, was rescued by fishermen at sea in 1999 while his mother was drowned) demonstrated the vulnerability of a child’s future. His Cuban father wanted his boy back to Cuba but the boy’s migrant relations in the US did not want his father to have the custody of the boy in Cuba.
The US government intervened and physically removed the boy from the custody of his relations in the US (Florida) and handed him over to the father who returned to Cuba with the boy. This demonstrates the special needs of children under international law.
A three-day special Session of the UN General Assembly was convened in May 2002 to discuss the rights relating to children. About 180 countries participated in the session. It was for the first time that children were allowed to speak at the UN session. One female child from Bolivia, Gabriela Azurudy Arrieta, 13, said at the conference:
“We are the children whose voices are not being heard…. We want a world fit for children because a world fit for us is a world fit for everyone.”
The children from every part of the world discussed their problems including child abuse and violence and made it known to all participants in the session that their views needed to be consulted on issues affecting them.
The session prepared a document, called “A World Fit for Children,” which was signed by the participating countries.
International Criminal Court: Rome Statute of 1998
The idea of an International Criminal Court is not new. It was in 1872 Gustave Moynier of the Red Cross thought of a criminal court when he saw atrocities in the Franco-Prussian War.
The idea could not proceed because it conflicted with the notion of state sovereignty. It has been mooted throughout the 20th century. The League of Nations (1920-39) attempted to establish it but nations refused to surrender their sovereignty.
In the aftermath of the Second World War and the Nuremberg and Tokyo Criminal Tribunals, the proposal to create a permanent International Criminal Court that could try the most heinous international criminals gained wider support.
The need for setting up a permanent International Criminal Court was felt as a deterrent for the horrific crimes perpetrated on individuals by the despots and dictators on their nationals during peace and civil war situations.
In 1948, the UN General Assembly proposed an international judicial organ for the trial of persons charged with genocide.
The Cold War froze the dream of establishing a criminal court as one side’s criminal was the other’s ally. After the end of the Cold War, Bosnian and Rwandan armed conflicts erupted in the 90s.
The UN Security Council established two Ad-hoc Criminal Tribunals – one in The Hague and the other in Arusha (Tanzania). In many instances, those responsible for gross atrocities, often against the civilian population, have gone unpunished.
Had there been a permanent International Criminal Court in 1971, Pakistan military commanders would have been put on trial to meet justice on accusations of genocidal activities in Bangladesh in 1971. War crimes and crimes against humanity occurred in Cambodia, Iraq
, Ethiopia, Liberia, Somalia, Sierra Leone, and Uganda during the last 50 years or so. Yet many perpetrators of these crimes have not yet been brought to account because of the absence of a permanent International Criminal Court.
A five-week-long UN conference met in Rome in June 1998 with representatives from 162 countries including Bangladesh.
The conference was presided over by a Canadian diplomat Philippe Kirch. On 17 July 1998, the setting up of an autonomous International Criminal Court with an independent prosecutor became a reality when the Statute for the Court was adopted by 120 affirmative votes (Bangladesh included) with 21 abstentions and 7 negative votes (including China and the US – each with a different reason of their own).
The UN Secretary-General Kofi Annan called the setting up of the Court a “giant step forward in the rule of law that a few years ago nobody would have thought possible.” The non-government organizations played a crucial role in making the Rome conference a success.
France was the first country to sign the Statute on 18 July 1998 in the presence of the UN Secretary-General. On 11 April 2002, the required 602’2 instruments of ratification were deposited with the UN in New York and as of 1st July 2002, the Rome Statute came into effect. By April 2003, all the judges and an independent prosecutor have been appointed for the functioning of the Court.
Jurisdiction of the International Criminal Court
The Court consists of 18 Judges who are elected by the state-parties of the Rome Statute. The Court is able to try individuals who are accused of war crimes committed in civil wars, including those by the rival faction, besides international crimes.
However, as a compromise-deal, the delegates agreed that the Court could only act with the permission of the country where a crime was alleged to have been committed or of the suspect’s home country, unless a case was referred to it by the UN Security Council.
It is a Court of last resort. Under the Statute, the Court will step in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity, war crimes, and aggression.
The other trigger for a trial is if the alleged criminals are citizens of a nation that has ratified the Rome Statute or if the crime is committed in a nation that ratified the Statute.
Its prosecutor will not be able to pursue a case without the agreement of a three-member judge panel. The Security Council of the UN can suspend any case for 12 months, a blocking move that can be repeated indefinitely.
With the establishment of the permanent international criminal court, there will be no need for setting up of ad-hoc criminal tribunals by the UN. The existence of the court will act as a warning for dictators that they will not go unpunished if they commit gross violations of human rights on their nationals.
The Statute is not retrospective and accordingly, the Court will not be able to try persons for crimes committed before 1st July 2002.
Weaknesses of the International Criminal Court
However, the weakness of the Court remains because China, Russia, and the US—together with India, Indonesia, Iraq, Iran, Israel, Pakistan, Turkey, and a few others—do not support the Court.
Although the US signed the Statute under the Clinton administration, the Bush administration decided to “unsign” and renounced its legal support of the Rome Statute on 7 May 2002 on the ground its citizens may likely to be the subject of frivolous or politically motivated prosecutions and its troops overseas may be at risk of prosecution before the Court.
Many legal experts maintain that fears of the US are misconceived on the following reasons;
(a) the court extends its jurisdiction if the national courts fail or are unable to investigate and perhaps prosecute the suspects,
(b) court’s independent prosecutor must convince a pre-trial chamber of three judges of the court that the alleged crime has not been investigated by the national legal system to ensure that politically motivated or frivolous cases are not brought before the court, and
(c) the UN Security Council may put off a trial for 12 months, a blocking move that can be repeated indefinitely.
European Commission of Human Rights
The European system of protecting human rights is primarily composed of the European Convention on Human Rights. The Convention protects most of the rights contained in the 1948 Universal Declaration of Human Rights.
The contracting state-parties are required by Article 1 to “secure to everyone within their jurisdiction” the rights and freedoms protected by the Convention. Article 13 declares that persons so affected shall have an “effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.
In order to ensure the observance of the obligations undertaken by the parties to the Convention, a European Commission on Human Rights (the Commission) and a European Court Human Rights were established.
The Commission consists of a number of members equal to that of the state-parties to the Convention. All proceedings before the Commission take place in confidential sessions.
Any state-party may refer to the Commission any alleged breach of the Convention by any other state-party. In 1982 Denmark, Norway, Sweden, and the Netherlands brought against Turkey on allegations of torture and inhuman treatment of prisoners in Turkey. The Turkish case was subject to a friendly settlement.
An individual from state-parties in Europe can lodge a complaint to the Commission that one or more of their rights under the Convention has been violated by one of the state-parties to the Convention.
This implies that an individual may lodge a complaint to the Commission against his/her own government. However, prior to lodging a complaint to the Commission, an individual must exhaust his/her remedies before national protection systems.
The Commission undertakes the role of a conciliator between individuals and state-parties. If a case cannot be settled by friendly means, the Commission must draw up a report and provide its opinion.
Thereafter, it must send it to the Committee of Ministers with any proposals that it sees fit. If the Committee cannot dispose of a case through a friendly settlement, it refers to the European Court of Human Rights if a state party has accepted the jurisdiction of the Court.
The Notable Human Rights Instruments
The most important documents on Human Rights are catalogued below:
- The English Magna Carta of 1215
- The English Habeas Corpus Act of 1679
- The English Bill of Rights of 1689
- The American Declaration of Independence 1776
- The French Declaration of Human Rights 1789
- The American Bill of Rights 1791
- The UN Universal Declaration of Human Rights 1948
- The International Covenant on Civil and Political Rights 1966
- The International Covenant on Economic, Social and Cultural Rights 1966
It is argued that few areas of national and international life remain untouched by the influence of human rights.
It is noted where domestic procedures fail to protect human rights of individuals international mechanisms are likely to be invoked to protect human rights and provide redress, although in certain cases there has been limited success.
Interventions on Grounds of Gross and Massive Violation of Human Rights
It is now acknowledged that sovereignty is not absolute and is limited by international law. As a result, states are subject to various limitations imposed on their activities by international law.
Even the strongest supporters of state sovereignty appear to reconcile with the fact that the days of unrestricted exercise of sovereignty over the people within its territory have disappeared.
This new international public policy imposes an obligation to treat human beings with dignity without any treaty obligations. At the heart of this policy is a change of concept about the attributes of sovereignty, from control to responsibility.
Since the observance of human rights has been elevated to a matter of international concern, a state accused of violation of human rights may no longer plead that observance of human rights is a matter essentially within its domestic jurisdiction.
Many jurists argue that a minimum standard of behavior to individuals is expected of every state within its territory. A dictator, for instance, cannot deny fundamental rights to the people in such a way that shocks the conscience of humankind.
The unfettered exercise of domestic jurisdiction by a state in terms of Article 7 of the UN Charter is now to be judged in the context of a shift from a culture of sovereign impunity to one of national and international accountability.
It means that if a country fails to protect its own people, the international community is likely to intervene to remedy the situation. It is grounded on the theory that no country holds unlimited power to do what it wants to its own people.
This implies that if a country in question is unable or unwilling to protect its own people, then intervention by other states may be required.
It must be admitted that military intervention on humanitarian grounds is an extraordinary measure. For it to be warranted, civilians must be faced with the serious threat of irreparable harm in one of just two exceptional ways.
The first is large-scale loss of life, actual or anticipated with genocidal intent which is the product of deliberate state action, state neglect, inability to act, or state failure. The second is large-scale “ethnic cleansing”, actual or anticipated, whether carried out by killing, forced expulsion or acts of terror.
Furthermore, the primary purpose of military intervention must be to halt human suffering. One of the yardsticks is to look to what extent the opinion of other countries in the region has been taken and is supportive of military intervention.
The second precautionary principle is that intervention is justifiable if non-military options have been exhausted.
There was a robust debate as to whether the armed attack on Iraq in 2003 by the Anglo-American alliance could be justified on humanitarian considerations to “liberate Iraqi people” from the Saddam Hussein regime. Since the UN had not approved it, the Iraqi war was termed illegal by the UN Secretary-General.
Some authors have argued that the phrase “humanitarian intervention” ought to be replaced by the term “responsibility to protect”. They argue that the new formulation of the term has three advantages: first, the focus on the duty to protect communities from mass killing; second, this new term implies that the primary responsibility rests on the state concerned.
Only if that state is unable or unwilling to fulfill its responsibility to protect or is itself the perpetrator, the international community takes the responsibility to protect in its place, and third, the “responsibility to protect” is to be considered a comprehensive concept that includes not just the “responsibility to protect” but also the “responsibility to react” and the “responsibility to prevent”.
The responsibility to protect meant that a duty to react to situations in which preventive measures should be resorted to. If preventive measures do not contain a situation and when the state in question is unwilling to step in, then intervention may be required. The measures of intervention may include political and economic and only in extreme cases military action.
Some writers have suggested both the Security Council and the General Assembly of the UN may adopt resolutions incorporating the idea of “responsibility to protect” of people from threatened mass killing or ethnic “cleansing”. The UN will thus give signals loudly and clearly to all states that the international community will not tolerate gross violation of human rights within the territory of a state.
Human Rights and World Politics
The observance of human rights cannot be disassociated from world politics. The manner in which breaches of human rights have been pursued appears to be selective and apparently is influenced by global politics. There seems to be no universal standard of application of the mechanism to protect human rights. Often a double-standard policy is being pursued by big powers.
For instance, in Chile when the communist-leaning government of President Allende was overthrown by a military coup led by General Augusto Pinochet in 1973, gross violations of human rights were committed by the military junta from 1973 to 1990.
No country, including the US, voiced any opposition because the military government deregulated the market and opened it for foreign investment. When Iraq used chemical weapons against its Kurdish nationals, killing approximately 5000 in Halabja in March 1988, there was no word of condemnation or action taken by the international community.
Rather in 1989, the US sent its official to Iraq for discussion as to how Iraq could assist in resolving the Israeli-Palestinian conflict, and the envoy reportedly claimed former President Saddam Hussein as a “moderate” leader in the region.
Furthermore, it is argued that Western powers have not advocated the implementation of human rights to those issues that are against their interests.
Primary attention is given to political rights, rather than economic rights. All these instances demonstrate that the protection of human rights has been embroiled in world politics and power.